United States v. Cheryl Little Dog ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30010
Plaintiff-Appellee, D.C. No.
4:16-cr-00009-BMM-1
v.
CHERYL LYNN LITTLE DOG, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted July 12, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,** District
Judge.
Cheryl LittleDog1 appeals from her convictions for harboring a fugitive and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
1
Because Ms. LittleDog styles her name this way in her briefing on
appeal, we adopt that formulation rather than “Little Dog” (as the name was styled
in the district court).
making a false statement to federal law enforcement, which arise from the
discovery of federal fugitive Frank Gallardo in the crawlspace of Ms. LittleDog’s
house. As the parties are familiar with the facts, we do not recount them here. We
have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s order
denying Ms. LittleDog’s motion to suppress evidence obtained during the two
searches of her house, but we vacate the judgment and remand for an evidentiary
hearing as to whether Ms. LittleDog’s Sixth Amendment right to conflict-free
counsel was violated by the Federal Defenders’ successive representation of both
her and the fugitive she was accused of harboring.2 We also grant Ms. LittleDog’s
request for judicial notice.
1. On appeal, Ms. LittleDog argues that both the first and second searches
of her house were unlawful. But in her motion to suppress, Ms. LittleDog
conceded that the first warrantless search was consensual and moved to suppress
only the evidence gathered during the second warrantless search. Accordingly,
Ms. LittleDog has waived her challenge to the legality of the first search. See
United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987) (per curiam).
The district court did not clearly err in finding that Ms. LittleDog consented
to the second warrantless search of her home where the undisputed suppression
2
Accordingly, we do not reach Ms. LittleDog’s other claims: that
insufficient evidence supports her conviction of the first count; and that both the
first and second counts suffer from erroneous jury instructions.
2
hearing testimony was that, after the officers knocked, Ms. LittleDog opened her
front door, “invited [them] in,” and then told them to “go look” for Mr. Gallardo in
the house. See Pavao v. Pagay, 307 F.3d 915, 919–21 (9th Cir. 2002); United
States v. Garcia, 997 F.2d 1273, 1280–81 (9th Cir. 1993); United States v. Shaibu,
920 F.2d 1423, 1427 (9th Cir. 1990). Nor did the district court clearly err in
finding, under the totality of the circumstances, that Ms. LittleDog’s consent was
voluntary, where Ms. LittleDog was not in custody and the officers did not have
their guns drawn; the “second search lacked the level of intensity of the first
search”; and Ms. LittleDog did not appear afraid of the officers at any point. See
United States v. Jones, 286 F.3d 1146, 1152 (9th Cir. 2002); United States v. Kim,
25 F.3d 1426, 1431–32 (9th Cir. 1994).
The district court did not err in denying Ms. LittleDog’s motion to suppress.
2. Ms. LittleDog also argues that her Sixth Amendment right to conflict-free
counsel was violated by the Federal Defenders’ prior representation of Mr.
Gallardo. The Sixth Amendment’s guarantee of the effective assistance of counsel
is violated when an actual conflict of interest exists. United States v. Walter-Eze,
869 F.3d 891, 900 (9th Cir. 2017). “[A]n actual conflict ‘is a conflict of interest
that adversely affects counsel’s performance.’” Id. (quoting Hovey v. Ayers, 458
F.3d 892, 908 (9th Cir. 2006)). To establish an “adverse effect,” a defendant “must
demonstrate that his attorney made a choice between possible alternative courses
3
of action that impermissibly favored an interest in competition with those of the
client.” McClure v. Thompson, 323 F.3d 1233, 1248 (9th Cir. 2003). An adverse
effect exists where counsel fails to put on certain defenses and witnesses as a likely
result of the conflict. See United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir.
1992).
When a potential conflict of interest due to simultaneous representation is
brought to the court’s attention, and where the defendant has established an “actual
conflict” by demonstrating “adverse effects” resulting from the conflict, Mickens v.
Taylor, 535 U.S. 162, 173–74 (2002), the court’s failure to “take adequate steps to
ascertain whether the risk was too remote to warrant separate counsel” requires
automatic reversal. Holloway v. Arkansas, 435 U.S. 475, 484–85, 488–91 (1978).
In this case, Ms. LittleDog’s trial counsel was a member of the Great Falls
Federal Defenders’ office. Another attorney from the Great Falls Federal
Defenders’ office represented Mr. Gallardo from October 19, 2015 until October
23, 2015.3 Because Mr. Gallardo was the only direct witness in the case against
Ms. LittleDog for harboring a federal fugitive, the Federal Defenders’ duty of
loyalty to Mr. Gallardo, a former client, creates a potential conflict of interest in its
3
Pursuant to Fed. R. Evid. 201(f), Ms. LittleDog requests judicial
notice of filings from Mr. Gallardo’s criminal proceedings in the U.S. District
Court for the District of Montana and the U.S. District Court for the District of
South Dakota. The government does not oppose this motion, and we grant it.
4
representation of Ms. LittleDog. See United States v. Rodrigues, 347 F.3d 818,
824 (9th Cir. 2003) (holding that a firm’s successive representation of clients with
an adverse interest to one other could violate the firm’s duty of loyalty to each
client and create an “actual conflict,” just as a single attorney’s successive
representation of those clients might).
Ms. LittleDog objected to this potential conflict of interest. The district
court apparently never addressed this pro se motion, and the record contains no
evidence indicating that it inquired into the potential conflict.
Ms. LittleDog argues that the district court’s failure to inquire into the
potential conflict of interest, when it knew or reasonably should have known of
that conflict, requires automatic reversal under Holloway, 435 U.S. at 488–91. But
Ms. LittleDog must also show “adverse effects” creating an “actual conflict” to
justify reversal. See Mickens, 535 U.S. at 173–74. Accordingly, we vacate the
judgment and remand for an evidentiary hearing on the question whether any
“actual conflict” existed, and if so, whether Ms. LittleDog validly waived her right
to independent counsel. See Mickens, 535 U.S. at 170 n.3; Wood v. Georgia, 450
U.S. 261, 272–74 (1981).
Each party shall bear its own costs on appeal.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
5